This document provides an overview of remedies available in tort and contract law. It discusses both legal and equitable remedies. For legal remedies, it covers compensatory damages, punitive damages, restitutionary remedies like money, replevin, and ejectment. For equitable remedies, it discusses constructive trusts, equitable liens, injunctions, and specific performance. It provides rules and elements for analyzing each remedy, such as the requirements to obtain an injunction. It also compares analyzing remedies for tort versus contract claims. The document aims to equip the reader to properly approach a remedies question on an exam.

1. REMEDIES
Course-LL.B-I
Subject-Law of Tort I
Unit-IV
1

2. How do you approach a remedies
essay question?
• Determine if there are legal remedies
available
• Determine if there are equitable remedies
available
• Determine if there are any equitable defenses
that may apply

3. What must you do before discussing remedies in
an essay question?
• Determine what substantive law is involved
AND
• Establish if the plaintiff has a case

4. What are the primary 2 categories of
remedies?
• Legal Remedies
• Equitable Remedies

5. In what order must remedies always
be analyzed and why?
• First look for LEGAL remedies
• Secondly, look for equitable remedies
• Reason: legal remedies must be analyzed first
because equitable remedies are not available
UNLESS the plaintiff can first show that no
adequate legal remedies were available

6. DAMAGES
• Damages are legal remedies
• Compensatory damages
• Punitive Damages
• Liquidated Damages
• Nominal Damages
• Statutory Damages
• Statutory damages are available when a statute provides for a minimum recovery
amount in the case of violation. P must prove the statute was violated and that the
violation caused the plaintiff actual harm before any recover can exist

7. RESTITUTION
• Intended to prevent the Defendants unjust
enrichment and work to disgorge the
defendant of benefits wrongfully obtained.
• Can be both Legal and Equitable
• Lets flip to the next slide to look at the legal
and Equitable remedies

8. Legal Restitution
• Remember, we want to always go for the legal
remedies first
• Thus, we look to the legal restitution:
• Money (This is not money damages, it is more like disgorging the D of benefits he
gained wrongfully)
• Replevin
• Ejectment
• Quasi Contract (unjust enrichment)

9. Equitable Restitution
• Constructive Trust
• Equitable Lien
• Rescission
• Reformation

10. COERCIVE REMEDIES
• Used to force an individual to either do a
certain act or to refrain from doing a certain
act
• If they do not follow the orders give them by
the court – they are in contempt
• Coercive remedies include:
• Injunctions (torts)
• Specific Performance (Contracts)

11. Review: Legal Remedies in Tort
• Damages
 Compensatory Damages
 Consequential Damages
 Nominal Damages
 Punitive Damages
• RESTITUTION
 Money
 Replevin
 Ejectment

12. Equitable Remedies Available in Tort -
Review
• Equitable Restitutionary Remedies
Constructive Trust
Equitable Lien
• Equitable Coercive Remedies
Injunctive Relief

13. Contract – Legal Remedies
Damages
• Compensatory Damages
• Consequential Damages
• Liquidated Damages
• Nominal Damages
Restitutionary
• Quasi Contract
• Replevin
• Ejectment

14. Contract Equitable Remedies
• Constructive Trust
• Equitable Lien
• Rescission
• Reformation
• Specific performance

15. Let’s break down Damages
COMPENSATORY DAMAGES
Compensatory damages are calculated on
the cost of the injury to the Plaintiff and are
Intended to compensate the plaintiff for her loss
In tort cases, we want
to put the plaintiff BACK
into the position they
were in prior to the
harm suffered (or as
close as possible)
Paulsgraph
In Contracts, we want to
put the innocent party in
the position they
WOULD BE IN if the
contract had been
fulfilled (expectation)
Hadley v. Baxendale

16. Contracts Expectation Interests
• Definition: the expectation interest provides
the non breaching party with the profits it
would have received had the contract been
performed
• Rule: Compensatory damages for breach of
contract usually are computed based on the
non breaching partys expectation interest

17. Contracts: Reliance Interest
• Definition: Reliance interest seeks to place
the non breaching party in the position it
would have been in had the contract never
been created
• Rule: Compensatory damages for breach of
contract are computed based on the reliance
interest when the non breaching party
suffered harm due to its reasonable reliance
on the contract

18. What is required to get compensatory
damages?
• D must breach a duty or contract
• The breach is the actual and proximate cause
of the harm or injury in dispute
• Harm was foreseeable at the time of the
breach
• Damages can be calculated with reasonable
certainty AND
• P made all possible mitigations

19. The “Certainty” Requirement
• Rule: Actual Damages must be certain and not speculative
• The amount need not be “absolutely certain” but they need to be able to be
approximated under reasonableness
• Example: a restaurant owner has been in business for 5 years, he has made 100k a
year in profits for those last 5 years on an average – Joe Dry Cleaner next door has
a fire that burns down Restaurant owners business. Restaurant owner can claim
that his damages were 100k because it has been reasonably certain and
established that he has made 100k a year and expected to make the same amount
this year, but for the fire.
• Another example: O just started a business which was destroyed by A when A
drove his car into the business and it blew up. O sues A for damages. **The
damages are too speculative here and O will not likely get much for actual
damages because the value of the damages cannot be ascertained.

20. How are future losses created
“All Or Nothing Rule”
Rule: To be compensated for future losses, a
plaintiff must demonstrate that the losses are
more likely than not to occur. Upon such a
showing, the plaintiff can recover in full for all
future losses stemming from the injury or
breach

21. Consequential Damages
• Consequential damages are those that arise as a natural, proximate or
probable consequence of the tortious act or breach of contract. The are
awarded distinct from and in addition to compensatory damages when it
is determined that compensatory damages will not make the plaintiff
sufficiently whole.
• BAR TIP: Be sure to differentiate between:
1) Compensatory Damages = money it will cost P to restore himself in tort
or to reach the position he would have been in if the contract had been
completed.
2) Consequential Damages = money the P has lost due to the tort or
contract breach (lost income, lost profits, discomfort, annoyance,
inconvenience etc)

22. Elements of Consequential Damages
1) The damages must arise naturally from the
tortious conduct or breach of contract, AND
2) The damages were reasonably foreseeable

23. Nominal Damages
• Definition: Nominal Damages are used to
vindicate a Plaintiffs right when (1) that right
has been violated; (2) No loss is sustained; OR
(3) the injury cannot be measured (it is too
speculative)

24. Punitive Damages
• For Torts only
• Used to punish and deter repetitive unlawful acts
• We need a “hook” to hang punitive damages on before we
can seek them.
• The hooks you can use are:
1) Compensatory Damages
2) Consequential Damages
3) Nominal Damages
You will need to establish at least one of these
to hang your punitive damages on.

25. Punitive Damages
RULE - Due Process prohibits the imposition of grossly excessive punitive
damage awards against tortfeasors. To determine if damages are grossly
excessive, courts balance:
1) The degree of reprehensibility of the conduct
2) The disparity between the harm suffered and the amount awarded, AND
3) The amount of damages commonly awarded for comparable conduct

26. Liquidated Damages
• Liquidated means the amount of damages can
be approximated, the parties have either
agreed on an amount or the amount is certain
• Unliquidated means that there is some
disagreement on the amount of damages the
amount cannot be determined

27. Liquidated Damages
• Definition: Liquidated damages are damages
specifically provided for in the contract
between the parties

28. Contract Liquidated Damages
• Rule: Parties to a contract are generally permitted to agree on
the amount of damages for the manner in which damages will
be recovered in the event of breach by either party. A
liquidated damages clause will be upheld if:
1) The amount agreed upon is a reasonable estimate of the
amount required to compensate for the loss, AND
2) Damages were difficult to ascertain at the time of contract
formation
3) The Amount stated in the liquidated damages clause must be
compensatory in nature and not punitive.

29. Review: Legal Restitution Damages
• Definition: Legal restitution damages are
based on the value of the benefit conferred on
the defendant.
• We want to “disgorge” the money from the
defendnat

30. Review: Legal Restitution Damages -
Rule: Legal Restitutionary damages can be measured by:
1) The reasonable value of the benefit conferred, OR
2) the extent to which the Defendants property value was increased or other
interests advanced
NOTE:
1) A plaintiff cannot be awarded both compensatory AND restitutionary damages
2) Restitutionary damages are not available when the claim is only for partial
damages
BAR TIP: if the plaintiff has suffered an injury AND the defendant has received a
benefit, discuss both compensatory and restitutionary remedies but only award
the plaintiff one remedy.

31. Replevin
• Definition: Replevin is the restitutionary
remedy that allows the plaintiff to recover
possession of “personal property”

32. Replevin
RULE: Replevin is available when the Plaintiff establishes:
1) He had the legal right to the possession of the property and
2) The defendant is wrongfully withholding the property
NOTE: The plaintiff can recover the personal property before trial IF:
1) A preliminary judicial hearing is held AND
2) The plaintiff posts a bond
3) The plaintiff may also request monetary damages for the loss of use while the
property was wrongfully withheld (loss of money, rental value etc)

33. Ejectment
• Definition: Ejectment is a legal restitutionary
remedy that allows a plaintiff to recover
possession of real property

34. Ejectment - Rule
Rule: Ejectment is available when the plaintiff establishes:
1) She had the legal right to possession of the property, AND
2) The Defendant is wrongfully in possession of the property
3) Self Abatement is not allowed!
4) The execution of a writ of ejectment must be carried out by the sheriff.
5) Again, discuss the monetary damages as well if an ejectment issue arises
because the plaintiff may have a loss of rental value, loss of profit, etc..

35. Contracts: QUASI CONTRACT
• Definition: Quasi Contract relief may be
available if a contract fails and results in the
unjust enrichment of one of the parties.

36. Contracts: Quasi Contract Rule
Rule: Quasi contractual relief will be available when the plaintiff can show that:
1) One party has conferred a benefit on the other
2) The conferring party has a reasonable expectation of being compensated
3) Benefits were conferred at the express or implied request of the other person
AND
4) Unjust enrichment would result if the D was allowed to retain the benefits

37. Equitable Remedies
Constructive Trust:
Definition: A constructive trust is an equitable restitutionary remedy used to return
legal title to property in which the defendant has improperly acquired the title to
the proper owner
Rule: a court may create a constructive trust over the property and declare the
defendant as trustee with the sole duty being to return the legal title to the
rightful owner. A constructive trust is generally available only if a legal remedy
would be inadequate
Note: If the defendant has transferred title to the plaintiffs property to a third person,
a constructive trust can still be imposed over the property unless the transferee
was a bona fide purchaser

38. Equitable Lien
Definition: An equitable lien is an equitable restitutionary remedy used to reimburse
the plaintiff for a benefit conferred on the Defendants property, or a benefit
gained by the defendant through improper taking of use of the plaintiffs property
Rule: A court may provide the plaintiff with a security interest in property owned by
the defendant to reimburse the plaintiff for a benefit conferred on the Defendant.
An equitable lien is generally available only if a legal remedy would be inadequate.
(D is insolvent - Bankruptcy issues)
Note: Since this is a security interest, P may foreclose the lien by forcing a sale of the
property and applying the proceeds to the payment of the claim if the defendant
does not pay.
Note: The purpose of this is to provide P with a security interest in D’s property. We
want to do this when D has a potential of filing for bankruptcy and getting out of
paying his debts all together. When D tries to sell, liquidate or file for bankruptcy P
will be paid the amount of the debt or part of it based on the actions of D.

39. Tort – Mandatory Injunction
• Definition: A mandatory injunction is a court
order that compels a party to perform an
affirmative act
• Example: the court orders joe criminal to pick up trash along the highways
for one week

40. Tort – prohibitory injunction
• AKA – negative injunction
• A court order to prevent or stop the D from
doing an act

41. Tort Injunctive Relief
Definition: Injunctive relief is an equitable coercive
remedy in which the D is ordered to engage in or
refrain from doing a specific act.
• Injunctions are enforceable through the courts
contempt power
• Two types of injunctions
1) Temporary restraining order (TRO)
2) Permanent Injunctive relief

42. Tort: Temporary Restraining Order
Definition: a TRO is used pending a hearing to determine whether a temporary injunction should
be used
Rule: To obtain a TRO the P must show that:
1) Immediate and irreparable injury will occur without the order
2) No adequate remedy at law exists
3) The plaintiff is likely to succeed on the merits of the case
4) Issuance of the order will not cause substantial harm to the public AND
5) The harm to the plaintiff if the TRO is denied outweighs the harm to the defendant if
granted (balancing of hardships)
Notes:
1) A hearing for a TRO can proceed ex parte
2) TRO is limited to 10 days
3) P must provide notice to D or make a good effort
4) P must usually post a bond

43. Tort - Temporary Injunction
• A temporary injunction is issued at the
beginning of litigation and is intended to
prevent irreparable harm from occurring
before the merits of a suit are decided
• This can also be called a preliminary injunction
so that you don’t confuse it with a tro.

44. Tort – Temporary Injunction/preliminary
Rule: To obtain a Temporary injunction the P must show that:
1) Immediate and irreparable injury will occur without the order
2) No adequate remedy at law exists
3) The plaintiff is likely to succeed on the merits of the case
4) Issuance of the order will not cause substantial harm to the public AND
5) The harm to the plaintiff if the TRO is denied outweighs the harm to the defendant if
granted (balancing of hardships)
Notes:
1) Adversarial hearings are required
2) One issued a temporary injunction is in place throughout the trial
3) Cannot exceed 3 years
4) P must post a bond

45. How do courts balance hardships of the restraining orders?
• Courts often balance out the hardships on what is called a “SLIDING SCALE”
• The showing of hardships required by the party seeking the injunction is inversely related to
the strength on the merits of that party’s claims.
• In other words: the plaintiffs hardship MUST strongly outweigh the hardship of the
defendant.
See the next slide for an example

46. Balancing example
For example, think of this case scenario: In 1980 P moves into the housing complex, purchases a home knowing that Joe Blast is
the towns mining company and the major source of employment for the town. P also knows that occasionally, there is some
blasting going on for mining purposes. P lives in the community for 5 years when P becomes crippled from a non related
accident and is advised by the doctor to put in a swimming pool for therapy. P does this and in the year 2000 Joe Blast
shoots off some explosives, P suddenly has cracks in his pool and sues Joe Blast for damages because his property value
went down and he cannot use his pool.
1. Is there a prima facie case?
2. What are the damages?
3. What are the remedies?
We balance the hardships by assessing “Nuisance”, Conversion, Trespass to chattel to look for damages and establish the prima
facie case. Then we look to remedies and try to see what can be recovered, HOWEVER In this process, we need to view this
like the court would view it:
1. Burden to P
damage to pool
Public Nuisance
Can’t do his therapy as required by the doctor
property damage and devaluation
2. Burden to Joe Blast
1. He is the main source of employment in the town
2. P knew about the blasting and moved into the Nuisance
3. P waited until the 11th hour to make a complaint when the blasting never affected him before
4. The damage to the public would be much greater if Joe Blast was shut down than it would if they kept him open

47. TORT- permanent injunction
• A permanent injunction is issued after a full
hearing on the merits (or upon consent or
default of the opposing authority), and is
intended to permanently prohibit an act from
occurring or to compel an act be carried out
until a dispute is resolved.

48. Tort: Permanent Injunction
Rule: To obtain a permanent injunction, the P must demonstrate:
1) No adequate remedy at law exists
2) The plaintiffs property or protectable interest is at stake
3) Enforcement of the injunction is feasible AND
4) The harm to the plaintiff if the injunction is denied outweighs the harm
to the defendant if the injunction is granted

49. property right
• Traditionally: equity would grant relief only
when a property right was involved (meaning
real property)
• Modernly: equity will grant relief when ANY
protectable interest is at stake
personal property or real property

50. Tort: Feasibility
• How is the feasibility of enforcing a mandatory
injunction determined?
Answer: By
• The difficulties inherent in court supervision over the D’s actions AND
• Court concerns with ensuring the D’s compliance with the order
• Ask yourself, “could a court really do that?” Would a Negative injunction be better??
• Most courts favor a negative injunction because it is easier to enforce.

51. TORT: Feasibility part 2
• How is the feasibility of enforcing a
prohibitory injunction determined
Answer: when a plaintiff seeks negative injunctive relief, no enforcement problem
exists- in fact the courts favor this type of injunction.
The courts would rather STOP someone from doing something than to have to
somehow monitor the quality of work performance, supervise and document the
defendants act. Really the court has no way of knowing if a person is really doing
something or not…they have less control over it and thus, would rather put a
“stop” to something than to have something done –
Does this makes sense???

52. Tort: Balancing of hardship
• How does the court balance hardships when
determining whether to grant an injunction?
(notice we are not specifying the type of
injunction here)
See the next slide please

53. ANSWER
Rule: the courts will balance the hardship the plaintiff will suffer if the
injunction is not issued against the hardship the defendant will endure if
the injunction is issued. In balancing the hardships, courts will consider:
1) The disparity between the potential hardship suffered by each party
from the issuance/non –issuance of the injunction
2) The hardship to the public caused by the injunctions, AND
3) The defendants level of culpability

54. TORT: What must be included in a court
order for injunction or TRO ?
1) Order must state the reason for the injunction or TRO’s
issuance
2) Be specific in its terms
3) Describe in reasonable detail the act ordered to be
restrained

55. Tort: Who is bound by an injunction?
Parties in privity
Employees and agents of the parties acting
with notice of the order, AND
Third parties acting with notice of the order

56. Tort: How are injunctions enforced
Rule: Injunctions are enforced through the
courts power of contempt
Civil contempt = fining the party and or
imprisonment until the party complies
Criminal Contempt = fining the party and or
imprisoning the party

57. Alternatives to an injunction
Legal Remedies!!!
**REMEMBER TO ALWAYS USE YOUR LEGAL
REMEDIES FIRST**************
1) Money Damages
2) Replevin
3) Ejectment

58. Tort: When are money damages
inadequate?
• When they are too speculative
• When the defendant is insolvent
• When the act has only been threatened
• Irreparable injury will occur OR
• Unique property is at stake

59. Tort: when will replevin be
inadequate?
• When the property cannot be found or
indentified OR
• When the defendant destroys or threatens to
destroy chattel

60. TORT: when will ejectment be
inadequate??
• Rule: ejectment is inadequate if the sheriff
refuses to enforce an ejectment order

61. Contracts: RESCISSION
• Definition: an equitable remedy through which
the original contract is voided and rescinded
• Basically both parties agree to dump the
contract and get rid of it – it no longer exists and
no party is bound to it

62. Contract Rescission part 2
– Rule: A contract may be rescinded if the requesting party can prove:
1) Mistake
a) Mutual Mistake as to a material fact = Rescission is usually granted
b) As to a collateral fact = Rescission is usually denied
c) Unilateral Mistake = usually denied
A) Exception = if the non mistaken person knows or should have known of the
mistake, Rescission will likely be granted
1) Misrepresentation – granted if the plaintiff relied on the misrepresentation
2) Coercion
3) Undue influence
4) Lack of capacity
5) Failure of consideration
6) Illegality

63. Contract Reformation
• Definition: Reformation is an equitable
remedy through which the court alters a
written agreement between parties to
conform to the parties original understanding
• You may know this from contracts as “Blue
Penciling”

64. Contract Reformation
• Rule: a contract may be reformed if the
plaintiff can establish:
1) A valid contract exists
2) Grounds for reformation exist:
a. Mutual mistake
b. Unilateral mistake ONLY where the non
mistaken party KNOWS of the mistake

65. Contract Specific Performance
• Definition: specific performance is an
equitable coercive remedy through which the
court requires the parties to perform
according to the terms of a contract

66. Contracts Specific Performance part 2
RULE: P must prove:
1) The contract is valid
2) Contract terms must be certain and definite
3) The requesting party has performed according to the
contractual conditions
4) No legal remedy is available
5) Mutuality of remedy

67. Mutuality of Remedy - contracts
• Definition: The mutuality of remedy refers to the availability of the
requested remedy to both parties of the contract
• Rule: To be granted specific performance, the requesting party must
demonstrate that the remedy it is requesting would be available to the
opposing party

68. Equitable Defenses
• Unclean hands
• Unconscionability
• Laches
• Estoppel
• Sale to a bona fide purchaser

69. References
• Regha surya rao- Law of Tort
• Ratan Lal & Dhiraj Law-The Law of Torts (1997) Universal, Delhi
law book
1.https://lh5.ggpht.com/2xcggcE4PZ7CPrXUYswML2x6PLVzWUyR1kcjz4Q6VAL
M5-7PlGZnt5lt5qxqOS6PFt5w=s131